More than two decades ago, the U.S. Army Corps of Engineers determined that property owners in the reservoir pools of Addicks and Barker dams might sue the Corps if they were flooded but had a slim likelihood of success, a conclusion that supported decisions not to pursue upgrades to the aging dams at the time, a Corps document shows.
The analysis, laid out in a previously undisclosed 11-page document entitled “Addicks and Barker Reservoirs Legal Takings Analysis,” shows that the Corps was cognizant that it could be sued, and that “Given the nature of the expensive homes that would be flooded and the quality of legal representation these owners could afford, there is always the possibility of an adverse ruling.”
Documents, however, show the Corps officials believed that a storm that could spill into homes would be so rare and irregular that it did not necessitate retrofitting the dams to avoid the potential flooding and litigation, despite mounting evidence that the dams increasingly were being constrained on both sides by the Houston area’s rapid development — increasing the amount of water they were being forced to hold back while decreasing the amount that could be released safely.
The document and the Corps’ conclusions have raised new questions after Hurricane Harvey, when the storm’s floodwaters filled the Barker and Addicks reservoirs and backed up beyond government-owned land, flooding more than 9,000 homes and businesses. Many homeowners now are suing the Corps for compensation.
Jim Blackburn, an environmental lawyer not involved in the litigation against the Corps after Harvey, said while case law may have changed since the Corps’ analysis, even in favor of property owners suing the federal government, the document shows that the Corps had “concern and reflection” about the potential of flooding property owners and being sued.
“It shows that the Corps clearly understood that takings, flooding property both upstream and downstream, was a real potential associated with the operation of Addicks and Barker,” said Blackburn, co-director of Rice University’s Severe Storm Prediction, Education and Evacuation from Disasters Center.
Ilya Somin, a law professor at George Mason University who has written extensively about legal takings and penned a piece analyzing the Addicks and Barker cases, said in an interview Tuesday that the document could reinforce the property owners’ claims that the Corps was aware of the consequence of its actions during Harvey.
Attorneys for the plaintiffs say that Corps documents generally show they “analyzed the problem, they’ve correctly identified the problem, they know about the problem, and they decide again and again and again to do nothing and accept the risk of litigation,” said Charles Irvine, a co-lead attorney representing property owners flooded upstream of Addicks and Barker during Harvey.
“The decision was rather than pay now, we’ll pay later,” said Daniel Charest, another co-lead attorney on the case.
Irvine and Charest declined to comment specifically on the 1995 legal analysis obtained by the Houston Chronicle in a public records request, saying it would not be appropriate to comment on the document because the government claimed it was protected by attorney-client privilege.
An Army Corps spokesman referred questions to the U.S. Department of Justice. A Justice Department spokesman declined comment, citing the pending lawsuits.
Addicks and Barker Dams were built by the Corps in the 1940s, 15 miles west of Houston city limits to hold back storm runoff and protect Houston below the dams from flooding.
During heavy storms, water builds up in the reservoirs, which is called the “flood pool.” The reservoirs are not bounded by walls or banks, so in an extreme storm, the flood pool can extend into the residential neighborhoods that were built in and around the reservoirs in recent decades.
The disclosure of the legal analysis comes on the heels of another report published in the Chronicle last week that showed that, in the days before Harvey hit the Houston region with full force, Corps forecasts showed that Barker and Addicks would flood subdivisions upstream of the reservoirs, raising questions of whether property owners around the reservoirs could have been alerted to the danger sooner.
The Chronicle published an article last December as part of its series Developing Storm showing that for years, experts outlined problems with the dams and identified potential remedies but each time, decision makers concluded that the situation was not bad enough to justify major corrective measures.
One of those reports shows that, based in part on the legal analysis, the Corps in 1995 decided against pursuing plans to build a third reservoir, excavating Barker and Addicks deeper, building channels to carry water out of the reservoirs in the event of a severe storm or buying out homes upstream or downstream, because the cost could not be justified.
All of those solutions have been proposed again in Harvey’s wake.
Harris County Judge Ed Emmett said Wednesday that the county still is trying to figure out when and how much federal money would flow to local projects, after Congress approved billions of dollars for disaster relief in a budget bill earlier this month. That bill could provide funding for a study to improve the Addicks and Barker dams, which could lead to construction of a third reservoir.
The 1995 legal analysis examines liability with respect to both upstream and downstream flooding. It states that downstream, the dams have provided greater protection than if they did not exist, but upstream, they could induce flooding that otherwise would not have occurred.
However, it states that the government bought enough land upstream of the dams that “it appears that the United States has little potential for liability under current conditions at Addicks and Barker.”
It further states that “it is prudent to look at options to further reduce the potential for flooding valuable improved land” and that the county should “make sure owners, future developers, and future buyers are put on notice that they are in a reservoir.”
Many of those flooded during Harvey said they did not know their homes were built in a reservoir.
Corps officials, in the past, have asserted that they held a number of workshops and seminars to educate property owners about the risks of living near the dams.
They also have said their actions during Harvey, which included releasing torrents of water into Buffalo Bayou that swamped thousands of homes downstream, were conducted to safeguard the integrity of the dams. A dam breach could result in thousands dead and dozens of neighborhoods, downtown Houston and the Texas Medical Center under water, according to Corps projection scenarios.
“Even if they have a good reason, that doesn’t get them off the hook for compensation,” Somin said.